New Developments in Israeli Counterterrorism Law: Discrimination in Home Demolitions, Civil Lawsuits, and Material Support

The past few weeks have seen several significant legal developments concerning Israeli counterterrorism policy. First, the Supreme Court of Israel ruled that as a matter of principle, the Israeli authorities may not discriminate between Palestinian and Jewish terrorists in their resort to home demolitions to deter terrorist attacks. However, a deeper look at the decision reveals that it is not likely to change much in practice. Second, in what seems to be a new strategy for deterrence, the Israeli government has filed lawsuits in civil court against the heirs of the perpetrators of terrorist attacks in Jerusalem. The government is seeking close to three million dollars in damages to cover benefits for the families of the victims of the attacks as well as related expenses. Finally, in another recent decision the Supreme Court qualified the scope of the criminal offense of providing material support to terrorist organizations under the new Israeli Counterterrorism Law, as applied to commerce with Hamas in Gaza. This post surveys these developments and offers some preliminary thoughts.

Discrimination in Home Demolitions

The prolonged surge in attacks against Israeli civilians, police, and military personnel, sometimes referred to as the “Knives Intifada,” has presented significant challenges for Israel’s security agencies. Those attacks have often been perpetrated by lone wolves—mostly individuals from the West Bank and East Jerusalem operating with little preparation and using readily available weapons such as knives, rocks, cars, and guns. The nature of the attacks makes them difficult to detect and disrupt at the planning stage. That is why Israel has emphasized deterrence in its efforts to dissuade potential attackers and prevent further attacks.

One way Israel has tried to increase deterrence is by resuming the practice of demolishing or sealing the homes of perpetrators of terrorist attacks. This practice, which directly harms the families of the perpetrators, is deeply controversial, and it is broadly viewed as a form of collective punishment inconsistent with international law. A slew of petitions to the Supreme Court of Israel, in its capacity as the High Court of Justice, have challenged the legality of the practice both in principle and as applied to specific cases.

In previous posts I have surveyed the new wave of home demolitions cases and the legal framework governing the practice today (see here and here). Without repeating the analysis, suffice it to say that the Supreme Court, reaffirming past precedents, has held that the sealing or demolition of the homes of perpetrators of terrorist attacks for the purpose of deterring future attacks is lawful in principle. At the same time, the Court has emphasized that the resort to home demolitions should be proportional and has put forward a number of requirements that limit the discretion of the authorities in invoking this tool. For instance, the Court has held that the authorities must consider the gravity of the attack in question, the harm to residents of the home other than the perpetrator, the extent to which they were aware of or contributed to the perpetrator’s actions, and whether it is possible to seal or demolish only the part of the home that was occupied by the perpetrator. The Court has evaluated these and other factors on a case-by-case basis.

It is important to note, however, that a number of justices have repeatedly voiced concerns that the practice of home demolitions might be inconsistent with both international law and Israeli domestic law. They have called on the Court to revisit its precedents authorizing the practice in principle, so far to no avail.

The Supreme Court’s July 4 decision in Abu-Khdeir v. Minister of Defense addressed the following question: Should the homes of Jewish terrorists also be subject to demolition, like the homes of Palestinian terrorists? To date, the home demolition authority has never been exercised against Jewish perpetrators.

The petitioners were the parents of Mohammed Abu-Khdeir, a teenage boy who was kidnapped and brutally murdered in Jerusalem in July 2014 by a group of Jewish perpetrators seeking revenge for the murder of three Israeli teenagers by Hamas operatives. The petitioners sought to compel the Israeli Minister of Defense to demolish the homes of the Jewish perpetrators, noting that the murder of their son was an act of terrorism under Israeli law. They argued that not doing so would constitute discrimination between Palestinians and Jews on the basis of ethnicity.

The government argued that there is no discrimination here because there are valid reasons not to deploy the home demolition tool against Jewish perpetrators. As the Supreme Court has held, home demolitions can only be resorted to for the purpose of deterring future attacks, and they are not necessary for deterrence when it comes to the Jewish sector. The volume and nature of Jewish terrorist activity remains very limited compared to the volume of Palestinian terrorist activity originating from East Jerusalem and the West Bank, the government maintained, and terrorism is not encouraged or lauded within the Jewish sector but widely supported and encouraged among Palestinians. The government emphasized that home demolitions are not deployed against Arab-Israelis for similar reasons. Furthermore, according to the government, the fact that Abu-Khdeir’s murderers have been convicted and sentenced in criminal court should create sufficient deterrence among potential Jewish attackers. The government’s briefs stated that this policy has been vetted at the highest levels of the Israeli leadership and approved by Prime Minister Netanyahu himself.

The government also raised a laches argument, pointing out that it took the petitioners almost two years to initiate legal proceedings. It recalled that in a previous case the Court held that the authorities are barred from demolishing the home of a Palestinian perpetrator because eleven months elapsed between the attack at issue and the authorities’ notice to his family of its intention to demolish their home.

Justice Elyakim Rubinstein, writing for the Court, dismissed the petition on grounds of laches, refusing to compel the authorities to demolish the homes of Abu-Khdeir’s murderers. However, the decision constitutes the Court’s most explicit rebuke to date of the government’s position that the tool of home demolitions should in principle be deployed only against Palestinians from the West Bank and East Jerusalem. The Court rejected this position, despite scattered dicta in previous demolitions case law that seemed to accept it. Justice Rubinstein reasoned that the differences in the volume and nature of terrorist activity between Palestinians and Jews are not reason enough to preclude the resort to home demolitions against Jewish perpetrators as a matter of principle. The purpose of home demolitions is to deter future attacks, no matter which group the perpetrators belong to. If deploying the measure against a Jewish perpetrator would save even one person’s life, Rubinstein maintained, the measure would be justified.

Symbolic value aside, it is not entirely clear what, if anything, the Court’s call for equality would mean in practice. For one thing, the parts of the opinion addressing the discrimination issue are technically dicta, and there is obvious tension between the Court’s rhetoric and the bottom line result. What’s more, the Court made it clear that it would not have compelled the authorities to demolish the homes of Abu-Khdeir’s murderers had the case been decided on the merits (on this point see also Justice Neal Hendel’s concurrence). Justice Rubinstein noted that the Court should generally give deference to the authorities’ assessment as to whether demolishing a home in a particular case is necessary for deterrence. In this case, he continued, the authorities have concluded that it is not. These comments appear to undermine and even contradict the Court’s call for equality. The Court’s rejection of the government’s argument that in general there is no need for home demolitions to create deterrence when it comes to the Jewish sector has no practical effect if the government’s reliance on that reasoning in any particular case, such as with respect to Abu-Khdeir’s murderers, is not subject to judicial correction.

Complicating things further, the Court did not really say much about the practical implications of its principled position. It only noted that whether it is necessary to resort to home demolitions against Jews and Palestinians alike should be determined on a case–by-case basis, in accordance with the existing judicial guidelines for the exercise of the demolition authority. But perhaps the biggest issue with the Court’s decision, as Amichai Cohen has observed, is that it contemplates expanding the scope of a controversial practice that likely violates international law. Collective punishment of Jewish families, Cohen argues, is no more justified than collective punishment of Palestinian families.

Civil Lawsuits

Israel now seems to be pursuing a new strategy for deterring terrorist attacks by applying economic pressure on the families of perpetrators. In late June the Israeli government filed two lawsuits in civil court against the heirs of Fadi al-Qanbar and Misbah Abu-Sbeih, who carried out deadly attacks in Jerusalem in late 2016 and early 2017. The attacks resulted in the deaths of six Israelis. Others were injured. Both al-Qanbar and Abu-Sbeih were killed during the attacks.

The government is seeking compensation for statutory benefits that it is required to provide to the families of the victims and other expenses, totaling about three million dollars. The press release issued by the State Attorney’s office regarding the lawsuits explains that they are designed to “send a clear and unequivocal message” that perpetrators of terrorist attacks will be held accountable in civil court, in addition to facing criminal and other sanctions. The State Attorney’s office is said to be preparing more lawsuits of this kind.

Like home demolitions, the move has been criticized for targeting the families of perpetrators. Those families are often left with little in the way of assets, especially if their homes are sealed or demolished. It is therefore doubtful that the government would be able to collect damages anywhere near the amounts it is suing for. Others have warned that Israel is inviting reciprocal Palestinian lawsuits in foreign jurisdictions and that the shield of sovereign immunity might not protect the state and its officials in the future. In any event, because of the precedential nature of the lawsuits, it is difficult to say at this point how the courts will handle them, or what weight they will assign to the plight of the defendants.

Gaza, Hamas, and Material Support for Terrorist Organizations

In another July 4 decision, the Supreme Court addressed the issue of material support for terrorist organizations under Israel’s new Counterterrorism Law. The Law, which came into force in November 2016, overhauled and consolidated domestic counterterrorism authorities (for more about the Law see previous post). Article 23 of the Law criminalizes the “provision of services or means” to terrorist organizations that could “enable, assist or promote” their activity, unless the provider proves that he or she did not know or suspect that the organization is a terrorist organization.

The case involved two Palestinian merchants from Gaze who sell electrical equipment. In the course of their regular business they sold merchandise to Hamas, among other clients. The question before the Court was whether this type of activity is covered by article 23. Justice Daphne Barak-Erez, writing for the Court, concluded that it is not. However, Justice Barak-Erez made it clear that the holding only applies to the unique situation in Gaza, where there is no avoiding some level of commerce and interaction with Hamas. This is both because the organization is the de-facto governing entity in Gaza and because in many cases Gaza residents simply have no choice but to cooperate with Hamas.

Justice Barak-Erez outlined several guidelines for interpreting article 23 as it applies to Gaza residents providing services to Hamas. The guidelines are designed to separate routine civilian interactions with Hamas from material support that ought to generate criminal liability. Justice Barak-Erez relied on and expanded guidelines that the State Attorney has issued in the course of the proceedings in this case.

The guidelines require prosecutors to consider the following factors when deciding whether to prosecute a resident of Gaza under article 23: The nature of the service or commodity provided; whether Israel prohibits or limits their provision to Gaza (Israel regulates the goods that enter Gaza from its territory, and, to a lesser degree, those that come in from Egypt); the identity and rank of the Hamas member or affiliate receiving the service or commodity; whether the transaction was initiated by Hamas or by the provider; whether there were active hostilities between Israel and Hamas at the time of the transaction; the value, duration, and frequency of the transaction; whether the provider engaged with Hamas voluntarily (as opposed to being coerced); and whether the transaction was made in the ordinary course of business. After applying those guidelines to the cases at hand, the Court concluded that the defendants’ conduct falls outside the ambit of article 23.

The decision is noteworthy because it interprets—for the first time—and qualifies the scope of the material support offense defined in article 23 of the new Counterterrorism Law. In addition, the decision recognizes the complex reality in Gaza and essentially legitimizes some degree of commerce between residents of Gaza and Hamas, provided that it is civilian in nature.